Who can make a Will?
Anyone over the age of 18 can make a Will provided they have what is called ‘testamentary capacity’. In broad terms, this means that the person making the Will must understand the nature of the document they are signing, what they own and roughly what it is worth, and the claims of those to be benefited by, or excluded from, the Will.
If someone does not have the mental capacity to make a Will themselves, an application can be made to the Court of Protection for a Will to be made on their behalf. The Court of Protection manages the affairs of vulnerable people and those who no longer have the ability to manage their own financial affairs. A Will made this way is called a Statutory Will. Even if a Deputy is already in place, they have no authority to sign a Will on behalf of the person whose affairs they manage and so a Court application is still required.
What do I need?
The application to execute a Statutory Will can be quite slow and involves lots of paperwork . As well as completing the Court’s standard application form, the Court requires the following information:
- A draft of the proposed new Will and copy of any existing Will
- Consents to act from the proposed executors of the new Will
- A family tree
- A schedule of the assets together with their current values
- A schedule of net yearly income and expenditure
- A statement of the needs of the individual, both current and future, such as care costs
- The resources of proposed beneficiaries, if felt to be relevant
- Details of any tax implications of the proposals
- A report on the medical condition and life expectancy of the individual
The Court may never meet the person on behalf of whom the Will is to be made, and so this information is required to give them as full as possible a picture of the person, their financial situation and their family.
Do I have to go to Court?
Sometimes those making the application are asked to attend a Court of Protection hearing. These hearings are designed to be less formal than hearings in other Courts, and the Official Solicitor usually represents the person for whom the Will is made.
What happens then?
The Court aims to make the Will that the person would have made had they been acting reasonably, with competent legal advice, had they enjoyed a ‘brief lucid interval’. A Statutory Will can make any provision that could have been made by the person had they had Capacity and so it cannot, for example, dispose of property abroad.
If the Will is approved by the Court, an order authorising its signature, usually by the person who made the application to the Court, will be made. Their signature must be witnessed in the usual way, and the Will is then sent to the Court who apply their seal to it. It is then a valid Will.
But I don’t need a whole new Will…
If only minor changes are required to an existing Will, then an application can be made to execute a Statutory Codicil; the procedure is is the same.
Our specialist solicitors have considerable experience of Statutory Will and Court of Protection applications. For further advice, contact our Solicitors in our Salisbury, Andover, Verwood or Amesbury offices
